STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

STATE OF FLORIDA, DEPARTMENT ) OF PROFESSIONAL REGULATION, ) FLORIDA CONSTRUCTION INDUSTRY ) LICENSING BOARD, )

)

Petitioner, )

)

vs. ) CASE NO. 81-1753

)

CHARLES H. BROMLEY, )

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to notice, the Division of Administrative Hearings, by its duly designated Hearing Officer, James E. Bradwell, held a public hearing in this case on October 1, 1981, in Boca Raton, Florida. 1/

APPEARANCES

For Petitioner: Michael Egan, Esquire

ROBERTS & EGAN, P.A.

Post Office Box 1386 Tallahassee, Florida 32301

For Respondent: Charles H. Bromley, pro se

4170 North West Oak Circle Boca Raton, Florida 33431

ISSUE

Whether or not the Respondent's activity and conduct in the performance and completion of several construction projects constitute unreasonable or dilatory practices and also whether Respondent's workmanship on such projects was of such an inferior quality that it would indicate proof and continued evidence of gross negligence or misconduct by Respondent in the practice of contracting within the meaning of Chapter 489.129(1)(m), Florida Statutes (1979). 2/

Based upon my observation of the witnesses and their demeanor while testifying, the arguments of counsel, the memoranda submitted, and the entire record compiled herein, I hereby make the following:

FINDINGS OF FACT

1. By its Administrative Complaint signed April 27, 1981, Petitioner, Florida Construction Industry Licensing Board, seeks to revoke Respondent's license to practice the profession of contracting and to impose a civil penalty based on conduct set forth hereinafter.

2. Respondent, Charles H. Bromley, is a certified pool contractor holding License No. CP-007871 (Petitioner's Composite Exhibit No. 1). During times material to the allegations of the Administrative Complaint herein, Respondent was a qualifying agent, pursuant to Section 489.119, Florida Statutes, for both Wands Construction Company, Inc., and for Magic Wands Pools, Inc. Respondent's testimony established that he was part owner of Wands Construction Company, Inc., was an officer of that company and deemed himself responsible for its activities. Respondent testified that he owned no stock in the predecessor company, Magic Wands Pools, Inc., nor was he an officer of that corporation and was not directly responsible for contracts undertaken by that company. Respondent's position is that at least two of these construction projects (Derfler and Dubovick) were projects undertaken by Magic Wands Pools, Inc., and completed by Respondent, doing business as, Wands Construction Company, Inc., inasmuch as Magic Wands Pools closed its doors in late 1979.

   
   

3. Wands Construction Company, Inc., entered into a contract with Mariner Village, Inc., to construct a pool at a condominium site being developed by that corporation. The contract was dated September 6, 1979, and called for completion of the pool within six weeks from the date of issuance of a permit. The permit for pool construction was issued on November 6, 1979. Respondent was unable to complete construction of the pool at Mariner Village, inasmuch as problems developed after the pool was filled which caused the pool walls and decking to crack and leak. Respondent attempted to correct the deficiencies in the pool until approximately August of 1980, at which time he was ordered off the job by Mariner Village, Inc.

   
   

4. Robert Hamilton, the developer and president of Mariner Village, was the person with whom Respondent negotiated the contract to build the pool for Mariner Village. During the course of time in which Respondent was attempting to correct the problems at Mariner Village, its president, Robert Hamilton, sent approximately six mailgrams to Petitioner reciting his contention that Mariner Village considered Respondent's actions to be a breach of its contract; that the pool was not completed in a professional-like manner and that Respondent's overall performance, or lack thereof, constituted negligence. (Petitioner's Composite Exhibits 3 and 4.) When Respondent completed the construction phase of the pool, neither the city nor the county would issue a certificate of occupancy to allow the residents of Mariner Village to use the pool. While it was noted that the county initially issued Respondent a certificate of occupancy for its construction of this pool site, that certificate was immediately revoked due to surface cracks in the pool on the north, east and west ends of the pool once it was filled to capacity. Robert Hamilton, president of Mariner Village, testified that at this time (during the hearing) he thought that the issuance of a certificate of occupancy was imminent and that while the price called for in the contract between Respondent and Mariner Village was $20,450.00, it (Mariner Village) had expended or was obligated to expend sums totaling $70,000.00 to complete the pool.

   
   

5. Mr. Hamilton ordered two engineering studies to examine and report on performance in the Respondent's construction of the pool. According to Hamilton, the reports revealed that the pool was erected on "good" pilings.

   
   

6. Respondent and Leslie Derfler entered into a contract on June 9, 1978, to construct a pool at his residence. The contract price was paid in full and the pool was completed, however, during the spring of 1979, Mr. Derfler detected an opening around the tile grout near the leaf-skimmer. The matter was immediately called to Respondent's attention. Failing to get a prompt response to his complaint, Mr. Derfler contacted the Better Business Bureau after which

   Mr. Derfler was able to communicate with Respondent during March of 1980. Respondent dispatched a repairman to regrout the tiles in the area around the leaf-skimmer, however, the repairman failed to regrout the tiles which he replaced. As a result, the door of the skimmer became inoperative and separated from the skimmer. Repeated attempts by Mr. Derfler to contact Respondent were unavailing and Mr. Derfler called another company (Boca Pool-Trol Laboratories, Inc.) to finish the necessary work. In this regard, evidence reveals that Respondent reimbursed Mr. Derfler for the monies paid to the Boca Pool-Trol Laboratories, Inc.

   
   

7. Respondent and Lindberg Development Company, through its assistant project manager, Taisto Pistkan, entered a contract on January 31, 1980, for the installation of a commercial swimming pool at Shore Heights Condominiums in Lantana, South Palm Beach, Florida. Respondent commenced construction on the pool during August, 1980, and the pool was not completed, such that it could be used, until June, 1981. Mr. Pistkan had to make repeated requests of Respondent to correct numerous problems, including leaks, falling plaster and tiles. When Respondent initially completed construction of the pool and it was filled, during September, 1980, leaks surfaced and approximately nine months later (June, 1981) Respondent completed construction of the pool and a certificate of occupancy was issued. In this regard, Respondent admitted during the hearing that it took an inordinate amount of time to make the necessary repairs to get the Lindberg pool certified.

   
   

8. On August 10, 1979, Mr. and Mrs. Melvin Dubovick entered into a contract with Magic Wands Pools to construct a pool at their residence in Delray Beach, Florida. This contract called for the completion of the pool within six weeks from the date that the permit was issued. In October of 1979, an agent of Wands Construction, which agent had previously been an agent of Magic Wands Pools, informed Mr. Dubovick that he would have to enter into a new contract due to a reorganization of the pool company. As a result of that advice, the Dubovicks and Respondent entered into another contract with Wands Construction Company, Inc., on October 25, 1979. (Petitioner's Exhibits 10 and 11.) According to Mr. Dubovick, the second contract was signed to "straighten out the paper work." Mr. Dubovick was advised that all of the material terms of the new contract would remain unchanged and that the work would be completed within approximately eight weeks. However, the contract with Wands Construction Company does not contain a completion date. Excavation for the pool was made during the middle of October, 1979. Thereafter, no further work was done during that year and the wooden deck of the Dubovicks' home, which was adjacent to the hole dug for the pool, collapsed on New Years Eve, 1979. Thereafter, there were a number of problems with the construction of the pool, including the fact that a spa was not built as called for in the plans for the pool which necessitated that the Respondent remove a portion of poured gunite around the pool's deck; the filter was improperly installed and leaks surfaced when the pool was filled, causing Respondent to place numerous patches and filter outlets in the pool. Additionally, the slope of the pool decking was improper and caused a flooding condition around the Dubovicks' patio. The dimensions of the pool were not completed according to plans in that the length of the pool as completed is 30 feet, 3 inches, whereas the plans called for the pool to be 34 feet in length. The contract provides that the pool would have a 15,000 gallon capacity whereas Mr. Dubovick contends that he has never been able to measure more than a 10,000 gallon capacity while he filled the pool. The pool was completed in July of 1980.

9. Kim Parker, a certified pool contractor, testified on behalf of Petitioner concerning two of the projects complained of in the Administrative Complaint. Consultant Parker is a licensed pool contractor and has been certified approximately two years. He is presently the general manager for Almar Pools. Mr. Parker has supervised pool construction in excess of two years. Mr. Parker visited the Mariner Village project on August 28, 1981, and noted hairline cracks in the plaster around the pool. Those cracks indicated to him that the plaster was either improperly applied or cured. He also noted a return fitting protruding into the pool, which he considered to he evidence of "shoddy" workmanship. Mr. Parker also noticed that the pumps in the pump room were not installed in a "professional" manner. During this time period, Mr. Parker also visited the Dubovicks' residence and he noted that an air leak existed at the filter pump, which caused a loud noise and that the pool was situated approximately three inches above the patio which created a drainage problem. In this regard, the Dubovicks testified that two doors were ruined due to water drainage problems around the pool area. Mr. Parker considered the workmanship around the Dubovick pool to be professional in its appearance although he did note that the pool was not constructed to the measurements provided for in the contract.

   
   

   Respondent's Defense

   
   

10. Respondent, Charles Bromley, qualified Magic Wands Pools during 1978. He did so, according to him, based on "bad legal advice." Respondent encountered numerous problems completing pools that were under construction for Magic Wands Pools while he also was handling the day-to-day affairs of the successor corporation. Respondent has completed all except two out of forty-two pools that remained incomplete when he took over and Magic Wands Pools ceased operations in late 1979.

    
    

11. Respondent contends that the former owner dumped "problem" pools on him which included the Mariner Village pool.

    
    

12. William Sheldon, a professional engineer who has acted as a consultant in the design of numerous pools (in excess of 1,000) was called as a witness to testify on behalf of Respondent. Mr. Sheldon visited the Mariner Village pool and studied the design. He concluded that inadequate pilings were the source of the problems with the Mariner Village pool. That is, he considered the pilings failed to give adequate support and that this was of no fault or could not result in any liability on Respondent's part, inasmuch as the pool contractor was not responsible for the pilings erected to provide support for the pool.

    Mr. Sheldon noted that the pilings were driven to substantially less depth than other short piles in the area which led him to conclude that the developers used "soft" piles which had a low-blow content. He concluded that this caused cracks to radiate out of the east end of the pool creating leaks. Mr. Sheldon's examination of the elevations around the pool indicated that the gutters were level; that the problem was therefore one relating to the pool's substructure and not due to any construction deficiency.

    
    

13. Also, Mr. Sheldon noted that, based on his calculations, without the usual allowance in calculations for an approximate ten percent (10 percent) deviation in a pool's volume capacity, his calculations indicated that the pool would hold approximately 11,872 gallons whereas the plans called for an approximate gallonage capacity of 10,500 to 11,000 gallons. Finally, Mr. Sheldon indicated that his review of the pool construction at Mariner Village only indicated that there existed one extrusion which he considered not to be critical in view of the overall construction and the pool's layout.

14. Respondent testified that construction at Mariner Village progressed at a reasonable pace indicating that on May 8, 1980, the pool was marble coated, however, the equipment was not completed in the pool room and therefore work could not proceed as scheduled. According to Respondent, the earliest time that the equipment was in place, by other subcontractors, was approximately August 18, 1980, and work commenced rapidly thereafter by Respondent's employees. Respondent testified that an engineer inspected the gutters on July 16, 1980, at which time the gutters were properly erected and that within four days, i.e., on July 20, 1980, the gutters were "low" and the tiles had sunk. Respondent replaced the gutters without cost, however, he refused to do further work on the pool until the substructure was solidified. During this period, Respondent also testified that Mariner Village failed to timely honor draw payment requests which forced him to stop work until funds were received according to the schedule for draws. Finally, Respondent testified that the pilings and related substructures were obligations contracted for and hired independently by the general contractor. For this reason, the Respondent offers that he was not obligated for the failures surrounding the pool at Mariner Village.

    
    

15. Respondent admits that the Dubovick project caused problems in that it was one that was left from the predecessor entity, Magic Wands Pools. He admits to delays in construction, however, he testified that he labored as faithfully as he could under the circumstances and further that all corrections and/or repairs were made that were called to his attention.

    
    

16. As to the contention that the pool was constructed smaller than the 15,000 gallon volume capacity as reflected in the plans and specifications, Respondent indicates that the 15,000 gallon capacity was an error and further that the Dubovicks never indicated to him that there was any discrepancy or deviations from requirements in the plans and specifications as he was required to do according to the terms of the contract. Respondent indicates a willingness to negotiate with the Dubovicks respecting this omission. Finally, Respondent testified that he never met the Derflers, although he did dispatch a repairman out to remedy their problem. Respondent considered that the problem had been resolved and was unaware that it had not until the subject complaints were filed. Respondent has, however, refunded the Derflers' monies which were expended to hire an outside contractor.

    
    

17. Throughout the time in which Respondent was attempting to complete or correct projects which had been started or initiated by Magic Wands Pools, he labored to do so with as much dispatch as possible under the circumstances. Respondent indicates that money was due and owing Magic Wands Pools by many customers who refused or was slow to pay.

    
    

18. Respondent has been in the pool construction business in excess of twenty years and based on the experience gained and the nature of that business he (Respondent) refuses to guarantee a completion date for a pool due to weather and other uncertainties beyond his control. He again acknowledged that the repairs took a great deal of time to complete, however, he stressed that he labored to perform those repairs in as much dispatch as possible under the circumstances.

    
    

19. Concluding, Respondent offered that part of his problem with the Dubovick pool had to do with his attempt to stay within the setback lines of the Dubovicks' property which prompted him to make minor deviations from the plans and specifications.

    CONCLUSIONS OF LAW

    
    

20. The Division of Administrative Hearings has jurisdiction over the subject matter and the parties to this action. Chapter 120.57(1), Florida Statutes.

    
    

21. The parties were duly noticed pursuant to the notice provisions of Chapter 120, Florida Statutes.

    
    

22. The authority of the Petitioner is derived from Chapter 489, Florida Statutes.

    
    

23. Chapter 489.129(1)(m), Florida Statutes (1979), provides that the Department of Professional Regulation may discipline contractors "upon proof and continued evidence that the licensee is guilty of fraud or deceit, or of gross negligence, incompetency, or misconduct in the practice of contracting." Respondent's inordinate delays in completing the five contracts upon which testimony was received, and to which Respondent admits, as well as the poor workmanship evidenced by Respondent in the performance of those contracts, constitutes proof and continued evidence of incompetence or misconduct by Respondent in the practice of contracting. Based thereon, Respondent's conduct as set forth hereinabove, amounts to conduct violative of Chapter 489.129(1)(m), Florida Statutes (1979). 3/

RECOMMENDATION

Based on the foregoing Findings of Fact and Conclusions of Law, it is hereby

RECOMMENDED:

That the Respondent, who holds certified pool contractors License No. CP- 007871, be placed on probation by Petitioner for a period of one year.

RECOMMENDED this 26th day of January, 1982, in Tallahassee, Florida.

JAMES E. BRADWELL, Hearing Officer Division of Administrative Hearings The Oakland Building

2009 Apalachee Parkway

Tallahassee, Florida 32301

(904) 488-9675

Filed with the Clerk of the Division of Administrative Hearings this 26th day of January, 1982.

ENDNOTES

1/ At the close of the hearing, the parties waived the 30-day requirement for the rendition of a recommended order by the Hearing Officer. The parties were afforded leave to submit post hearing memoranda supportive of their respective positions. Petitioner's counsel has submitted a post-hearing memorandum including a proposed recommended order which has been considered by me in

preparation of this Recommended Order. To the extent that said memorandum is not incorporated herein, said proposed findings were deemed either immaterial, irrelevant or not supported by the evidence or record.

2/ A secondary issue involved herein is whether or not Petitioner can properly, or ought to, be allowed to amend the Administrative Complaint herein during the hearing to allege a violation revealed by Respondent's testimony at the public hearing herein. Apart from the fact that the undersigned did not construe Respondent's testimony as indicative of or warrants a basis to conclude that Respondent engaged in conduct violative of Chapter 489, Florida Statutes, the undersigned is of the considered opinion that, inasmuch as the Petitioner seeks to impose sanctions, penal in nature, against Respondent for allegedly engaging in certain proscribed acts and/or conduct, procedural due process would require that the Respondent be afforded notice and an opportunity to be heard, including requesting a hearing before disciplinary action may be taken herein.

Accordingly, Respondent's Motion to Amend the Administrative Complaint herein, during the course of the hearing, is DENIED.

3/ While it is found and concluded that the Respondent has engaged in conduct in violation of Chapter 489.129(1)(m), Florida Statutes (1979), it was also noted that the Respondent, a successful contractor having been engaged in the business in excess of twenty years, has not had any disciplinary problems or other charges brought against him or his license by the Petitioner.

Respondent's explanations for the delays and the general overall workmanship involved in these projects were certainly not exemplary of a contractor who has been engaged in the business as Respondent with the apparent degree of success which he has enjoyed. Based on Respondent's explanation of his activities respecting these projects and the fact that he labored to correct as many problems and/or deficiencies that were brought to his attention, I shall recommend that he only be placed on probation inasmuch as a suspension of his license or the imposition of a civil penalty herein is not warranted under the circumstances. I shall so recommend.

COPIES FURNISHED:

Michael Egan, Esquire ROBERTS & EGAN, P.A.

Post Office Box 1386 Tallahassee, Florida 32301

Charles H. Bromley

4170 North West Oak Circle Boca Raton, Florida 33431

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AGENCY FINAL ORDER

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DEPARTMENT OF PROFESSIONAL REGULATIONS CONSTRUCTION INDUSTRY LICENSING BOARD

Respondent.

/

FINAL ORDER

This matter came before the Construction Industry Licensing Board at its meeting held March 12, 1982, in Fort Lauderdale, Florida. An administrative hearing held pursuant to Section 120.57(1), Florida Statutes, resulted in the issuance of a Recommended Order (attached hereto as Exhibit A) which was reviewed by the Board. Following a review of the Recommended Order and the complete record of this proceeding, the Board finds and concludes as follows:

1. The Findings of Fact in the Recommended Order are approved and adopted and incorporated herein by reference.

   
   

2. The Conclusions of Law of the Recommended Order are approved and adopted and incorporated herein by reference.

   
   

3. The Petitioner's exception to the Recommendation of the Hearing Officer is accepted. The Board rejects the recommendation of the Hearing Officer, and finds that the Hearing Officer's Recommended Penalty was not commensurate with his conclusion that "respondent's inordinate delays in completing the five contracts . . . as well as the poor workmanship evidenced by respondent in the performance of those contracts, constitutes proof of incompetence or misconduct by respondent . . ." Therefore, based upon the above findings and conclusions.

It is ORDERED AND ADJUDGED that the certified pool contractor's license of the Respondent be and is hereby suspended for a period of one year.

DATE: 8/6/82 REEL # 677

DONE AND ORDERED this 19th day of March, 1982.

FLORIDA CONSTRUCTION INDUSTRY LICENSING BOARD

John Henry Jones, Chairman

Docket for Case No: 81-001753

Orders for Case No: 81-001753